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2020 Supreme(Raj) 474
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
PRAKASH GUPTA, J.
Ramesh Chand Agarwal S/o. Shri Jainarayan Agarwal - Petitioner
Versus
Mahendra Kumar Agarwal S/o. Shri Kishan Lal Agarwal & Ors. - Respondents
S.B. Civil Writ Petition No. 2684 of 2018
Decided On : 24-03-2020
For the Petitioner: Mr. R.P. Garg.
For the Respondent: Mr. Sanjay Mishra.
Point of law:
An unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or as evidence of any collateral transaction not required to be effected by registered instrument.
Headnote:
Transfer of Property Act, 1882 - Section 17, 49 - Suit for specific performan - Recovery of possession - Mesne profit - Permanent injunction - An unregistered sale deed of an immovable property of the value of Rs. 100/- and more could be admitted in evidence as evidence of a contract in a suit for specific performance of the contract. Such an unregistered sale deed can also be admitted in evidence as an evidence of any collateral transaction not required to be effected by registered document.
Facts of the case:
Writ petition has been filed by petitioner-defendant against the order passed by Trial Court, whereby the application filed by defendant for not exhibiting document in issue being unregistered and insufficiently stamped, has been dismissed - as the contention that document being insufficiently stamped was concerned, the Trial Court has rightly observed that the defendant utterly failed to disclose as to how much stamp duty was required to be paid on when agreement to sell was executed.
Finding of the court:
Document being insufficiently stamped was concerned, Trial Court has rightly observed that defendant utterly failed to disclose as to how much stamp duty was required to be paid when agreement to sell was executed - Consequent upon dismissal of writ petition, stay application also does not survive and same also stands dismissed accordingly.
Result: Writ petition Dismissed.
ORDER :
1. This writ petition has been filed by the petitioner-defendant (hereinafter referred to as ‘the defendant’) against the order dated 17.1.2018 passed by the Trial Court, whereby the application filed by the defendant for not exhibiting the document in issue being unregistered and insufficiently stamped, has been dismissed.
2. Brief facts giving rise to the present petition are that the respondent-plaintiff (hereinafter referred to as ‘the plaintiff’) filed a suit for specific performance of the contract, recovery of possession, mesne profit and permanent injunction before the Trial Court. During the pendency of the suit, the defendant filed an application for not exhibiting the document in question as it was insufficiently stamped and also unregistered. That application has been dismissed by the Trial Court vide impugned order dated 17.1.2018. Hence this writ petition.
3. Learned counsel for the defendant submits that the suit was filed for specific performance of the contract, which was executed on 14.11.1996 on a stamp paper of Rs. 10/-, whereas the sale consideration was Rs. 1,75,000/-. In this view of the matter, the agreement being insufficiently stamped and unregistered could not be exhibited as it is inadmissible in evidence.
4. In support his contentions, learned counsel for the defendant has relied on the following judgments:
(I) Indu Vs. Narsingh Das & Ors. reported in 2013 (5) WLC (Raj.) 615
(II) Avinash Kumar Chauhan Vs. Vijay Krishna Mishra reported in 2009 (1) Civil Court Cases 735 (SC)
(III) Omprakash Vs. Laxminarayan & Ors. - 2014 (3) Civil Court Cases 040 (SC)
(V) Smt. Krishna Devi Vs. ADJ (FT) No. 5, Jaipur Metropolitan and Others – 2012 WLC (Raj.) UC 247
(VI) Golla Dharmanna Vs. Sakari Poshetty & Ors. 2014 (1) Civil Court Cased 188 (A.P.)
(VIII) Mahant Krishna Giri, Chela Mahant Vikram Giri Vs. Smt. Deepa Devi reported in 2013 (4) Civil Court Cases 463 (Uttarakhand)
(IX) Sait Tarajeet Khimchand and Others Vs. Yelamarti Satyam and others – AIR 1971 SC 1865.
5. Learned counsel for the plaintiff supported the impugned order and stated the same to be just and proper.
6. Heard. Considered.
7. Section 49 of the Registration Act, 1908 (hereinafter referred to as 'the Act of 1908') reads as under:
“Section 49. Effect of non-registration of documents required to be registered.-
No document required by section 17 or by any provision of the Transfer of Property Act, 1882 to be registered shall - (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:
Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or as evidence of any collateral transaction not required to be effected by registered instrument.”
8. A bare reading of the provisions of Section 49 of the Act of 1908 would reveal that an unregistered document affecting immovable property and required by the Act or the Transfer of Property Act to be registered can be received as evidence of a contract in a suit for specific performance and admittedly, the present suit is a suit for specific performance of contract, recovery of possession, mesne profit and permanent injunction.
9. Section 17(f) of the Act of 1908 provides for compulsory registration of such an agreement. However, as noticed herein-above, as the suit pertains to specific performance, the contention that the agreement has not been registered and therefore it should not be exhibited, cannot be accepted.
10. The judgments cited above and relied upon by the counsel for the defendant are not related to the suit for specific performance, therefore, the principles laid down therein cannot be applied to the facts of the present case.
